“Had the first CIT report, along with this second, been published by the end of 2022, I, and no doubt others, would have congratulated the Integrity Commission on its efficiency and its effectiveness. But that’s not the case. The three years makes a mockery of the investigative and reporting process,” fumes columnist HUGH SELBY. 

Three years, years not months. In mid-June 2022 the ACT  Integrity Commission announced that it would investigate contractual matters at the CIT. One such matter occurred in March 2022. 

Two years later it produced its first report: Leanne Cover, then CIT CEO, behaved inexcusably. After another 13 months here is the second report: Ms Cover and Andrew Whale were found to have behaved inexcusably back in 2022. You can find it here. 

This time around, the inquiry focused upon a payment schedule in a contract between CIT and a company Redrouge. 

Of the total price of just under $5 million, one third was to be paid by CIT on execution of the contract in March 2022, with ensuing instalments also payable in advance of the services to be provided, so that with 10 months still to run, more than 80 per cent of the total price would have been paid. After 20 months (ie, slightly more than 80 per cent of the contract period) 99 per cent of the contract price would have been paid. 

There can be contracts where there are substantial up-front costs to be met. This was not such a contract. There was no evidence that Redrouge needed to recruit staff or buy other materials. It was a contract for services only.

All disbursements (such as digital tools or software) needed CIT approval and were payable in addition to the contract price. 

You can get the flavour of this contract from the following nonsense in a brief given to the CIT Board:

“As a complex adaptive system, CIT must become a system that learns to ensure adaptive capacity is built to enable the organisation to be situationally aware and respond appropriately to changing contexts”.

More gobsmacking is this statement in the tender documents as to the design, implementation, feedback and evaluation of the services to be supplied:

“A multi-disciplinary and multi-scaled approach which is underpinned by a deep understanding of and proven applied experience with sciences relating to complex adaptive systems, networks, socio-technical systems and natural (ecological and evolutionary) and social (human and cognitive) systems”.

How do they make this stuff up? And, having done so, how do they obtain and hold well-paid positions?

The Commission had this to say about the brief prepared to “justify” the contract: “The obviously controversial aspects of the contract were the obscure character of the services to be provided, which was (for good reason) believed unlikely to be widely understood, and the advance payment schedule. 

“The clear (and intentional) implication that the Government Solicitor’s Office had been consulted, inter alia, about these critical elements of the contract was known by Mr Andrew Whale (Executive Director, Education and Training Services) to be a fiction, as these issues had been, from the outset, expressly excluded from consideration”.

Turning to a most practical issue, namely what would happen if the money was paid up front and the services were not delivered, the Commission stated: “Recovery of any amount – especially of money already paid in advance – may well have been rendered practically impossible or, at least doubtful and difficult, not least because Mr X (of Redrouge) was effectively a sole trader, albeit with a small number of employees or associates, whose financial position was unknown.

“No public official, acting with probity in the interests of the Territory, would enter into a contract that exposed the Territory to such a substantial risk on the basis that the contractor was concerned that the contract might be cancelled because it might attract controversy or be regarded as inappropriate by the Board, the government or a new agency executive”. The Contractor, Mr X, and he alone, was perspicacious about this contract.

Their denials were untrue

The Commission found, “no evidence that explained why Ms Cover or Mr Whale would involve themselves in knowingly dishonest and or corrupt conduct and they categorically denied doing so. 

“At the same time, whatever their motives may have been, the evidence established to the requisite standard that they each did in fact do so and that their denials were untrue.”

The Commission found that, “the justification given in the brief for the advance payments was knowingly false… Not only did this amount to serious corrupt conduct but could also amount to criminal offences.”

Those possible criminal offences, found in the ACT’s Criminal Code, are discussed in the report: “general dishonesty” (section 333); giving false or misleading information (section 338); producing false or misleading documents (section 339); and, conspiracy to defraud (section 334). 

There is also the common law offence of wilful misconduct in public office.

The Commission noted that: “The conduct of each of Mr Whale and Ms Cover, comprising, as it did, a purported exercise of power or authority by them as public officers otherwise than in an honest attempt to perform the functions of their office to the cost of the Territory may well constitute the tort of misfeasance in public office, for which they may be personally liable to be sued for damages.”

Let’s wait to see if any criminal charges and/or claims in damages occur. Don’t be overly hopeful.

A mockery of the investigative process

Had the first report, along with this second report, been published by the end of 2022, I, and no doubt others, would have congratulated the Commission on its efficiency and its effectiveness.

But that’s not the case. The three years makes a mockery of the investigative and reporting process. 

I have written before, and I write again, that if we are to have an integrity commission that gives value for money, then the default position should be that it must be able to pick and choose among complaints and then finalise its inquiries within a matter of months, not years.

In this CIT saga, the horses bolted in March 2022. They have not been seen since. Perhaps they are running with the brumbies deep in the Snowy Mountains?

But it’s not all gloom. The report includes a well written discussion of how the Commission goes about its fact finding, drawing inferences, and reaching conclusions.

I was taken by this observation: “The cliché is that everyone has 20-20 vision in hindsight, but it is obviously both unfair and inappropriate to use this view when looking at the situation as it faced the official”.

How wonderful it would be to see that wisdom applied to all of the Commission’s reports, no exceptions.

Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.